The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
This medical malpractice action was brought pursuant to
28 U.S.C. § 1332 on behalf of the minor plaintiff Covon Martin
("Covon") by his mother plaintiff Kim Martin ("Mrs. Martin"). A
jury trial was held November 29, 2004, through December 3, 2004,
in Utica, New York. The jury rendered a verdict in favor of defendant Richard
W. Moscowitz, M.D. ("Moscowitz") and judgment was entered
accordingly. More specifically, the jury found that Moscowitz was
not negligent in the care and treatment of Covon's left hip. It
also found that there was a lack of informed consent with regard
to the left hip, but that consent would still have been given if
the appropriate information had been disclosed. The jury found
that Moscowitz was not negligent in the care and treatment of
Covon's right hip. It then found that although there was a lack
of informed consent with regard to the right hip surgery and
given appropriate information consent would have been denied, the
lack of informed consent was not a substantial factor in causing
injuries to Covon.
Plaintiff now renews his motion for judgment as a matter of law
pursuant to Fed.R.Civ.P. 50 and moves to set aside the verdict
pursuant to Fed.R.Civ.P. 59 with regard to the jury's finding
that the operation on Covon's right hip was not a substantial
factor in causing unnecessary injuries to him. Defendant opposes.
The motion was taken on submission without oral argument.
Covon suffered from slipped capital femoral epiphysis ("SCFE").
Moscowitz first diagnosed SCFE in Covon's left hip, on February
1, 1999, when Covon was thirteen years old. SCFE occurs when the
growth plate in the hip (which has not yet solidified) causes the
femoral head to slip, causing joint pain. Treatment for this
condition consists of surgically placing one or more pins or
screws in the hip to prevent additional slippage. Positioning of
the pins or screws must be carefully monitored to prevent, or in
the case of pin/screw migration to correct, any penetration of
the pin/screw beyond the femoral head and into the hip joint.
Such penetration causes cartilage damage and can lead to
chondrolysis (destruction of the smooth joint surface) and permanent joint
malfunction, as well as other adverse effects.
Two types of hardware are available to fixate the hip in a
patient suffering from SCFE. Knowles pins have a pointed end, are
solid, and are placed directly without predrilling of the bone.
Multiple Knowles pins are required to accomplish a fixation.
Fluoroscopic x-rays are used during surgery to direct pin
placement and to assure that the Knowles pins are properly
placed. That is, x-rays must be reviewed to determine whether the
pointed end of any Knowles pins penetrate past the femoral head
into the cartilage of the hip joint. Because the x-rays are not
three dimensional, it is somewhat difficult to determine whether
pin penetration has occurred. Further, post-surgical monitoring
of joint range-of-motion and pain is necessary because of the
possibility that a Knowles pin penetrated into the joint
cartilage, undetected during surgery, or migrated into the joint
cartilage post-surgery. Knowles pins were the hardware of choice
for SCFE fixation until the middle 1980s, when the cannulated
screw was developed.
The cannulated screw is hollow with a blunt end. Placement of a
cannulated screw requires a pre-drilled channel. Because the
flat-tipped, broader cannulated screw holds more firmly, only one
or two cannulated pins are required to accomplish fixation.
Again, fluoroscopic x-rays are used during surgery to facilitate
proper pin placement. The flat tip design and more central
placement of the cannulated screw in the femoral head permits a
greater margin of safety between the end of the screw and the
cartilage, resulting in much less possibility of penetration than
with the Knowles pin. The wider end also makes penetration of the
femoral head more difficult. Additionally, the hollow core of the
cannulated screw permits the introduction of dye after placement
to assure that no penetration has occurred. If penetration is noted, it can be corrected
immediately while the patient is still in surgery. Moreover,
because the cannulated screw holds more firmly it is less likely
to migrate with the passage of time.
Moscowitz performed surgery on Covon's left hip on February 17,
1999. Moscowitz used three Knowles pins to fixate Covon's left
hip. After the surgery fluorographic x-rays were taken. Moscowitz
interpreted the x-rays and determined that there was no pin
penetration. Four days later a radiologist reviewed the x-rays
and opined that two pins were penetrating.
At the time of the surgery Moscowitz informed Covon and Mrs.
Martin that he should expect mild discomfort for three weeks
postoperatively. However, Covon complained of continued pain,
and, on May 28, 1999, Moscowitz performed a second operation on
Covon's left hip. During this second surgery, Moscowitz removed
one pin that was penetrating and backed off three turns on a
Thereafter Covon developed pain and limited range-of-motion in
his right hip. Moscowitz again diagnosed SCFE. He performed a
surgical procedure on August 18, 1999, to stabilize the right
femoral head. He used four Knowles pins in the right hip. Covon
again complained of pain and limited range of motion beyond the
three-week recuperative period Moscowitz predicted. Finally, on
September 30, 1999, Moscowitz referred Covon for a second
Thereafter, Covon consulted Dr. James Schneider ("Schneider").
Schneider determined that two of the four Knowles pins were
penetrating. On November 4, 1999, he surgically removed the
offending pins from Covon's right hip. Schneider also has
diagnosed Covon with chondrolysis, synovitis, and degenerative
arthritis. Covon's condition will worsen over time, and he will need, at the least, a total hip
replacement of the right hip. He has been advised to delay having
the hip replaced for as long as possible, because a hip
replacement will last only ten to fifteen years and therefore
would have to be repeated in his lifetime.
A. Rule 50 Judgment as a ...